1989 PLP 4535 (MLD)

Through order dated 20‑3‑1988 the learned trial Court dismissed the application of the petitioners for restoration of the suit which was dismissed in default on 14‑7‑1987. The appeal filed by the petitioners also failed which was dismissed by the learned lower appellate Court through order dated 26‑9‑1988.

2. I have heard the learned counsel for the petitioners. On 18‑6‑1987 the learned trial Court passed an order for filing amended plaint on 21‑6‑1987. On 21‑6‑1987 the case was adjourned for the said purpose on the request of the learned counsel for the petitioners to 14‑7‑1987. However, on 14‑7‑1987 neither the petitioners nor their counsel appeared and the suit was dismissed in default in the presence of the learned counsel for the respondents/defendants. The application for restoration of the said suit moved by the petitioners was dismissed on 20‑3‑1988 mainly on the ground that it was barred by time. The appeal filed by the petitioners also failed which was dismissed on the same ground.

3. I have heard the learned counsel for the petitioners. According to Order VI Rule 18 CPC a plaintiff to whom permission is granted to amend the plaint, but does not file amended plaint in the Court within the time granted by the Court or within the extended time he shall not be permitted to amend it after the expiration of such time. The learned trial Court should have fixed the case for another date for further proceedings on the unamended plaint. On 14‑7‑1986 the case was fixed merely for filing amended plaint which was not strictly a date of hearing. If the petitioners had failed to file the amended plaint the only consequence as noted above was that he was not to be permitted to amend it later on. Since the suit was not fixed for hearing on 14‑7‑1987, therefore, according to fairly established rule laid down by the superior Courts it could not have been dismissed for non‑prosecution and in such a case the period of limitation for making an application for restoration is three years under Article 181 and not thirty days as in case it had been dismissed on a date of hearing. The two Courts below have altogether ignored this aspect of the case having material bearing upon the right decision of the application moved by the petitioners. The two Courts below on the erroneous view taken by them can safely be held to have failed to exercise jurisdiction vested in them under the law.

4. This revision petition is accepted. The impugned orders dated 20‑3‑1988 and 26‑9‑1988 passed by the two Courts below are set aside. The application moved by the petitioners for restoration of suit dismissed in default on 14‑7‑1987 is hereby accepted and the order dated 14‑7‑1987 is set aside. The suit stands restored to its original number and the case is remanded to the learned trial Court to dispose of the same in accordance with law. The parties are left to bear their own costs. H.B.T./S‑529/L Petition accepted.